Divorce – Division of Property

  • November 15, 2016

Divorce is often a difficult time emotionally for both spouses, but things can get even more difficult when it comes to dividing the shared assets. There are several points which need to be clearly understood.

First fact to know is that divorce is a state issue and the laws of each state vary. For instance some states have what is known as a community property law. Anthony Con divorce lawyer san diego explains, “The community property law means that all property gained during the marriage is shared at the time of the divorce. It doesn’t matter if the property is a gift or purchased. It doesn’t matter if one spouse worked and the other did not.” With this in mind, if you are filing for divorce, it is important to study the law regarding divorce as it applies in your particular state, it could be a nightmare, it could come with some breaks.

The second fact is that a pre-nuptial agreement will decide the outcome of the distribution of property. This assumes that the pre-nuptial agreement was properly drawn up and approved by all relevant parties. In this case the judge will be guided by the approved agreement.

Then there is the issue of contested or uncontested divorces. If the spouses can agree on who gets what, the judge will in most circumstances agree to the wishes of the couple. But if the spouses cannot agree, the judge could rule the division of property and this may bother one or both spouse of the outcome. If you can’t communicate with your spouse at the time, you can try and do so through an intermediary. If there is some property you particularly want to keep, you can try and reach agreement because if you leave it to the judge, there is no guarantee you will be successful.

If a judge is making the decision regarding the split of property, he or she will weigh up the value of the goods in questions. For instance a bank account or two might equal the value of some real estate. In this case, the judge could give the house or land to one spouse and the bank accounts to the other. Again, if one spouse wants something such as the house, getting an agreement with the spouse is the only way to guarantee you will be successful.

Property owned by one spouse before the marriage is usually not included in the division. It’s in the same category as something in a pre-nuptial agreement. Likewise, if some property is specifically given to only one spouse, he or she is exempted from the division of property.

But referring back to the original point about different divorce laws in different states, any spouse facing divorce should be well aware of the laws as they apply in the state hearing the divorce.

It is possible to negotiate your own divorce without using a lawyer. But if you have any doubts about your rights or your ability to negotiate, hiring a lawyer and one who deals specifically with divorce may be an excellent idea. David Henry with Stone & Sallus Law closes with his thoughts, “In summary, lawyers litigate divorces because it is such an emotional process. There are so many factors you are dealing with that often don’t seem fair all around to both parities involved. A lawyer is most desired during the division of property when dealing with a judge.”

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